Case No: C4/2011/2751
Neutral Citation Number: [2012] EWCA Civ 1555
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE MITTING)
Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday, 18th October 2012
Before:

LORD JUSTICE MAURICE KAY
LORD JUSTICE ELIAS
and
DAME JANET SMITH
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	The Queen on the Application of
KR	

Appellant	
	
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SECRETARY OF STATE FOR THE
HOME DEPARTMENT	

Respondent	
			
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(DAR Transcript of 
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Mr Christopher Jacobs and Adam Tear (Solicitor Advocate) (instructed by Duncan Lewis) appeared on behalf of the Appellant.

Mr Jonathan Hall (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
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Judgment
Lord Justice Maurice Kay: 

1.	This court is becoming familiar with appeals in relation to disputes over costs between the Secretary of State and claimants or appellants in immigration cases which have been settled.  I use “immigration cases” in the broad sense of those words.  In the recent past, the court has given guidance on a number of occasions.  So far as judicial review cases are concerned, guidance was given in Bahta v SSHD [2011] EWCA Civ 895, and M v London Borough of Croydon [2012] EWCA Civ 595. So far as statutory appeals from the Upper Tribunal are concerned, guidance was given in AL (Albania) v SSHD [2012] EWCA Civ 710.  There is a degree of cross-reference as between the two jurisdictions, as the judgments in those cases made clear.  What the world of immigration practice does not need now is another formulation of guidance by this court.  We are concerned with the costs of a settled judicial review application.  The matter falls to be considered by reference to the authorities to which I have just referred.  I do not propose to set out extracts from the judgments in those cases.  

2.	It is in one sense surprising that we are hearing this case at all, because since permission was granted to the appellant to appeal to this court, the Treasury Solicitor on behalf of the Secretary of State proposed a consent order in which she would pay the appellant’s reasonable costs of this appeal and of the judicial review proceedings, on a standard basis.  She later withdrew that offer in circumstances which are not wholly clear to us.

3.	It is necessary to say a little about the facts of the case.  The appellant is a Jamaican woman, who came to this country in 2002 when she was almost 17 years of age.  She spent a long time as an illegal overstayer, and in fact made an unsuccessful application and pursued an unsuccessful appeal on asylum grounds during that period.  I shall come back to that.  For the moment, the story can be picked up in 2010 and 2011.  At that time, the appellant was still living with the aunt, to whom she had gone on arrival in this country.  She was in a relationship with a man, and in due course in 2010 she made an application on asylum and human rights grounds for leave to remain in this country.  

4.	In a long letter dated 6 January 2011, the Secretary of State refused her applications.  What is important for present purposes is that she certified both claims under section 94(3) of the Nationality, Immigration and Asylum Act 2002 as being “clearly unfounded”.  Such a certificate denies the applicant an in-country right of appeal.  That refusal letter came to the notice of the appellant on 6 January 2001, whereupon she was detained.  At that stage no removal directions had been issued.  On 18 January she instructed her present solicitors.  On 25 January 2011 the Secretary of State set removal directions for removal to Jamaica on 7 February.  The appellant’s solicitors filed an application for judicial review on 3 February 2011.  The application referred to the certification and the proposed removal without an in-country right of appeal.  There had been no communication between the solicitors and the Secretary of State or the Treasury Solicitor prior to the filing of the application for judicial review.  

5.	The Secretary of State filed an Acknowledgment of Service on 15 February 2011.  In it, she robustly defended the certificate to the point of asserting that the application was totally without merit, and requesting the court so to state.  On 17 February 2011 Supperstone J granted permission to apply for judicial review, not in relation to the certification of the asylum claim, but in relation to the human rights claim.  By a letter dated 25 February 2011 the Secretary of State proposed to settle the judicial review proceedings by conceding that the appellant was entitled to an in-country appeal in respect of her Article 8 claim.  At that stage she made no offer to pay the appellant’s costs.  What occurred was that a consent order was eventually agreed and signed on 14 March.  It was later approved by the court, and it provided that the issue of costs be resolved by way of written submissions, as often happens in cases such as this.  

6.	Written submissions were lodged on behalf of the parties, and on 6 October 2011 Mitting J made an order that there be no order for costs.  Paragraph 1 of his order, under the heading “Reasons”, was in the following terms: 

“1. It would not be just to order the defendant to pay the claimant’s costs, for the following reasons: 

(i)	The challenge was to the decision to set removal directions on 25 January 2011.  When set, the removal directions were lawful.  She had no leave to remain.  The refusal of her application for asylum on 22 December 2010 and the subsequent certification of her claim on 6 January 2011 lifted any legal bar to her removal.  There was no challenge before the issue of the claim to the refusal of asylum and/or certification.  
(ii)	The claimant did not comply with the pre-action protocol.  
(iii)	A significant part of the claim -- the challenge to the certification of the asylum claim -- failed. 
(iv)	The grounds of claim omitted a significant fact which must have been known to the claimant: that she had exercised a right of appeal to an immigration judge against the defendant’s refusal to vary leave to remain on 15 July 2003.”

In two subsequent paragraphs, Mitting J proceeded to make no order for costs in relation to a wasted costs application which had been made by the appellant, which application he plainly thought to be an inappropriate one.  

7.	The appellant then sought permission to appeal to this court.  She was granted permission by Sullivan LJ on 19 January 2012.  Sullivan LJ gave detailed reasons for his grant of permission and described the appellant’s case on costs as “strongly arguable”.  That is probably why initially the Secretary of State proposed a settlement on terms advantageous to the appellant.  Nevertheless, that having not eventuated into an actual settlement, the appeal is now to be resolved by us.

8.	The starting point in this, as in any other costs case, is CPR 44.3, whereby the court has a discretion as to whether costs are payable by one party to another.  The general rule, CPR 44.3(2), is that the unsuccessful party will be ordered to pay the costs of the successful party, but the court may make a different order.  In deciding what order, if any, to make about costs, the court must have regard to all the circumstances, including the conduct of the parties and whether a party has succeeded on part of his case even if he has not been wholly successful.  The conduct of the parties includes conduct before as well as during the proceedings, and in particular the extent to which the parties follow the Practice Direction on Pre-Action Conduct or any relevant pre-action protocol.  The conduct also includes whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue, the manner in which a party has pursued or defended his case and whether he has wholly or partly exaggerated his claim.  These are the details of the provisions set out in CPR 44.3.

9.	It is common ground, and we have well in mind, that before we could interfere with a costs order, we would have to be satisfied that the judge below had either erred in principle in his approach, or had left out of account or taken into account some feature that he should or should not have considered, or that his decision is wholly wrong because he has not balanced the various factors fairly in the scale (see AEI Rediffusion Music Limited v Phonographic Performance Limited [1999] 1 WLR 1507). 

10.	With all that in mind, I turn to the question whether it can be said that Mitting J fell into error in any of those ways in this case.  Of the four reasons he expressed for his decision to make no order for costs, the first may not be wholly correct.  He said that the challenge was to the decision to set removal directions, whereas in truth it was principally to the certification.  I propose to say no more about that at this stage, because it seems to me that far more turns on the second and third reasons he gave.  It is true that there was no compliance whatsoever with the judicial review pre-action protocol.  

11.	On behalf of the appellant, Mr Jacobs seeks to circumnavigate that by pointing out that the protocol itself states (in paragraph 6): 

“This protocol will not be appropriate in urgent cases, for example, when directions have been set, or are in force, for the claimant's removal from the UK, or where there is an urgent need for an interim order to compel a public body to act where it has unlawfully refused to do so (for example, the failure of a local housing authority to secure interim accommodation for a homeless claimant) a claim should be made immediately. A letter before claim will not stop the implementation of a disputed decision in all instances.”

As I have said, this is not simply a challenge to removal directions as such.  It is a case in which there was plainly a degree of urgency, but on the chronology as I have set it out, it seems to me that it would have been possible for the solicitors to communicate by letter, or certainly electronically, with the Secretary of State or the Treasury Solicitor before issuing the application.  The solicitors had commenced to act on 18 January.  Even if it can be said that the urgency was less before the setting of removal directions on 25 January, there still remained 13 days before the actual date set for removal on 7 February.

12.	However, that is by no means the end of the matter.  What is abundantly clear to me is that with more time, with prior warning, indeed with all the time in the world, the Secretary of State would have responded by robustly defending the application, as she did when her acknowledgment was served.  It was not a hurried document in any way.  It was a substantial document going to many pages, disputing the claim in every respect.  From this I conclude that, even if there had been meticulous compliance with the pre-action protocol, it would still have been necessary for the appellant to make her application for judicial review and to pursue it to the point of the grant of permission before any likely positive response would have been forthcoming from the Secretary of State.  To that extent, it seems to me that, by placing reliance on the failure to comply with the pre-action protocol in this case, Mitting J did fall into error because that failure was causally insignificant.

13.	I turn to his next reason, namely that a significant part of the claim, the challenge to the certification of the asylum claim, failed.  The claim form, in identifying the details of the decision to be judicially reviewed, referred simply to “decision to remove with an out-of-country appeal right under section 94”.  The claim form had a lengthy Statement of Facts and Grounds appended to it.  At the beginning, it stated that the claimant was seeking “the following relief”, there referring to (1) an order to quash the certificate and (2) a declaration that the claimant is entitled to an in-country appeal to the First-tier Tribunal in respect of the Secretary of State’s decision to refuse the claimant’s asylum and human rights applications.  It will be noticed that there the reference is to the certificate to refuse both asylum and human rights applications.  Under the heading “Factual background”, the history was set out, including the basis of the asylum application, and the circumstances underlying the human rights claim, which related to the claimant’s relationship with her then boyfriend and their domestic circumstances.  Under the heading “Grounds”, there is then set out over five or six paragraphs the grounds upon which the appellant was seeking to rely.  It is clear to me that under that heading the focus was exclusively on the human rights claim, and indeed upon Article 8.  

14.	When the Secretary of State responded, again in a detailed and considered document running to many single-spaced pages, the summary of the claimant’s grounds referred only to the human rights claim and specifically to Article 8.  The Secretary of State drew attention to the fact that there had been an unsuccessful appeal several years earlier; again, long before the relationship commenced between the appellant and her boyfriend.  The considered response then went on to set out in detail the refusal of the asylum claim and the reasons for the refusal of the Article 8 claim, before seeking the Secretary of State’s costs and a statement by the court that the claim was completely without merit.

15.	There has been much debate in the course of the hearing about the correct interpretation of the claim that was being made, and the sense in which it was understood by the Secretary of State.  It seems to me that, notwithstanding the references to asylum in the factual background part of the Statement of Facts and Grounds, what was being advanced was essentially and exclusively an Article 8 claim so far as the overturning of the certificate was concerned.  I conclude that there was a degree of error in Mitting J’s statement that a significant part of the claim had failed.  One has to stand back and consider what the issues were.  This appellant was seeking to challenge a two-headed certificate that appeared within a single letter, her challenge being to the effect that she had been wrongly denied a right of in-country appeal by the certification.  When one asks the question, pursuant to CPR 44.3(2), “Who was the successful party?”, it seems to me that the only answer is that the appellant was overwhelmingly successful in the application she had made.  She obtained all she sought in the proceedings, namely the withdrawal of the certificate.

16.	For my part, I would conclude that, by reference to Mitting J’s second and third reasons and without more, his decision to make no order for costs was significantly flawed.  I do not propose to spend much time in relation to his fourth reason.  He was correct to observe that the grounds of claim omitted reference to the previous unsuccessful application several years earlier, although it is questionable how material that was in view of the fact that the Article 8 claim, which was now the subject of focus in the present case, was related to facts and circumstances that simply did not exist at the time of the earlier claim.  In the event, the appellant succeeded in obtaining the withdrawal certificate.  That enabled her to pursue her appeal to the First-tier Tribunal, which in due course she won on Article 8 grounds.  Her success in the judicial review proceedings was, of course, a prerequisite to her ultimate litigation success in the First-tier Tribunal.

17.	For the reasons that I have given, I take that view that, unusually, this is a case in which it is necessary for us to interfere with the costs order made by the judge in the court below.  I consider this order to be significantly flawed.  For that reason, I would quash it, and exercising the discretion pursuant to CPR 44.3, I would order that the Secretary of State pay 70 per cent of the appellant’s reasonable costs.  I consider that there should be some discount, because although on my reading the claimant was not advancing a claim in relation to the certification of her asylum application, there is sufficient ambiguity in the pleadings to justify the Secretary of State’s interpretation that she was or may have been.  I also think that, taking a broad view of the case, the discount to which I have referred is just in all the circumstances.

18.	Finally, I ought to say something about the other part of Mitting J’s order, wherein he made no order for costs on the appellant’s application for a wasted costs order.  It is difficult for us to form any detailed conclusions about the merits of that.  The important point is that it is not the subject of any appeal.  It was, although contained in the same document, a separate order made in relation to a separate application.  It is plain from his language that Mitting J came close to making an order in favour of the Secretary of State.  However, he did not do so, and the Secretary of State has not appealed that aspect of his order.  Accordingly, being satisfied that the two parts of his order are genuinely separate, I do not think that the wasted costs aspect of the case impacts on the substantive application for judicial review.  

19.	Accordingly, I would allow the appeal to the extent that I have said.

Lord Justice Elias:

20.	I agree, and I would only add that if the pre-action protocol had been complied with, then it may have well have put beyond doubt that the appellant was not seeking to upset the certificate on asylum grounds.

Dame Janet Smith:

21.	I agree with both judgments.

Order:  Appeal allowed.